IN THE MATTER OF THE RACING COMMISSION ACT, S.O. 2000, c.20;
AND IN THE MATTER OF STANDARDBRED TRAINER/OWNER/DRIVER
WILLIAM COMPANION
Whereas Standardbred trainer/owner/driver William Companion appealed the decision of the Judges dated June 24, 2004 set out in Ruling SB 31907, in which Mr. Companion’s licence was suspended for 60 days and he was fined $1,500.00 for violating Rule 22.38(b) of the Rules of Standardbred Racing because the horse that he trained, “FIER A BRAS SEMALU” tested positive for TCO2 after the second race at Woodbine Racetrack on June 19, 2004. Also as a result of the positive test, the Judges ordered the purse and driver trainer fees redistributed pursuant to Rules 9.13 and 18.08 respectively.
On August 25, 2004, Vice Chair Larry Todd and Commissioners Bernard Brennan, DVM and Brenda Walker of the Ontario Racing Commission heard the appeal. Jim Whelan appeared on behalf of Mr. Companion and Tim Snell appeared on behalf of the Administration.
Upon reading the exhibits filed, hearing the evidence of Judge Gary Cahill, Investigator Rick Grant and Mr. Companion, and upon hearing the submissions of the parties, the Ontario Racing Commission dismissed the appeal as to liability and allowed in part the appeal with respect to penalty as follows:
The appeal is allowed in part and the order of the Judges dated June 4, 2004 is varied and amended so that the 60-day full suspension is quashed and replaced by a 21-day full suspension with the same $1,500.00 fine remaining.
The reasons for decision are attached and form part of this Ruling.
In the reasons for decision, the Panel has left it to the Parties to agree on the dates of suspension and the payment of fines, but failing agreement, that matter may be referred back to the Panel for determination.
DATED this 8th day of September, 2004.
BY ORDER OF THE COMMISSION _________________________
John Blakney
Executive Director
REASONS FOR DECISION
BACKGROUND
Trainer/owner/driver William Companion has appealed the decision of the Judges at Woodbine Racetrack dated June 24, 2004 (SB 31907) wherein they determined that Mr. Companion as trainer of the horse “Fier A Bras Semalu” tested positive with respect to TCO2 in the second race at Woodbine on June 19, 2004.
As a consequence of the above positive TCO2 test, the Judges ordered the purse redistributed and penalized Mr. Companion as the trainer of the aforesaid horse with a $1,500.00 fine and a 60-day full suspension.
This appeal was heard by a panel consisting of Commissioner Walker, Commissioner Brennan and Vice-Chair Larry Todd on August 25, 2004.
Trainer Companion was represented at the hearing by Jim Whelan while the Administration was represented by Tim Snell.
The following are the reasons for the unanimous decision of this panel.
FACTS
The appellant in his evidence and through his representative at this hearing confirmed that there was no challenge to the validity of the TCO2 test and the positive certificate resulting therefrom. In short, the Certificate of Analysis was admitted and accordingly we must conclude that the TCO2 value as measured was 40.6 mmol/L for Mr. Companion’s horse, Fier A Bras Semalu. The limit for a lasix horse such as this would have been 39.0 mmol/L.
The thrust of Mr. Companion’s case as presented through his representative, Mr. Whelan, was that there were a series of mitigating circumstances that had not been properly taken into account by the Judges when assessing the penalty with regard to the subject positive TCO2 test. It was not the position of Mr. Companion that he should be exonerated completely from the broad responsibility imposed on him as the trainer of the subject horse pursuant to Rules 26.02 and 26.02.1 of the Rules of Standardbred Racing.
Given Mr. Companion’s straightforward acknowledgments that several products with potentially alkalizing effects were kept in an unlocked tack room in a locked trunk whose key was hanging visibly nearby, we are obliged, even before considering the so-called mitigating circumstances, to agree with the submission of Mr. Whelan that this is not a case where the trainer can be absolved of responsibility for a positive test because of comprehensive due diligence in respect of taking “all reasonable precautions to protect the horse and guard it against wrongful interference…” by third parties.
There were, however, before us a number of matters that must be considered in assessing penalty for a trainer in this factual matrix. These unique factual circumstances can be summarized as follows:
(a) Mr. Companion trained his horses in a barn at Mohawk Raceway for a period of time from late 2001 until after the subject positive test. Both counsel referred to the interface of Mr. Companion and his assistant trainer, his wife, with certain other individuals in the subject barn as a “poisoned atmosphere”. We accept this evidence even though we note Mr. Companion did not choose to remove his horses from this stressful atmosphere until after the positive test in issue.
(b) Exhibit 2 in the proceedings before us, as well as Exhibit 7, give a graphic description and provide images of a “threat” in the form of graffiti or vandalism on the door of Mr. Companion’s tack room. The application of the words “he who laughs last, laughs longer” took place some time on the evening of June 12, 2004, a week before the race in which Fier A Bras Semalu raced and tested positive for TCO2. Mr. Companion did indicate that he uses a brand name electrolyte in each of his horse’s water on a daily basis other than on race dates. Mr. Companion was not sure whether this particular electrolyte contained alkalizing agents. This electrolyte material was located by the feed bin in the shed row and not secured in any respect from access by anyone.
(c) We heard evidence of certain parties in the same shed row as Mr. Companion being displaced and moved to other barns as a result of Mr. Companion’s stable expanding or requiring more space from time to time.
(d) Additionally, we heard evidence of disagreements and disputes with other parties in the same barn as Mr. Companion on an ongoing basis including challenges and taunts seeking physical altercations as a consequence of disputes with Mr. Companion and his wife.
(e) Mr. Companion stressed that the product “Tie Free” was kept in a locked trunk in his tack room. Judge Cahill noted in his evidence that “Tie Free” had created difficulties with regard to TCO2 readings in his experience in the past. Given the difficult interface with other occupants of Mr. Companion’s barn at Mohawk and the so-called “poisoned atmosphere”, one might have hoped that Mr. Companion would have done more to secure his supply of “Tie Free” other than to keep it in a locked trunk with the key for that trunk readily accessible on a peg nearby within the unlocked tack room.
CONCLUSIONS
It has been stated many times by this Commission that in regard to a positive test, there is a heavy onus on a trainer to adduce firsthand evidence of actual steps in the form of due diligence taken to protect the trainer’s horse from interference or sabotage by third parties, known or unknown.
While Mr. Whelan urged us to conclude that Mr. Companion had done everything possible to protect his horses, we do not find this to be the case in the difficult and “poisoned atmosphere” described to us.
Mr. Companion was operating at the time of the subject race out of a barn in which there were clearly stressful forces in play leading to a poisoned atmosphere and environs. It may well have been that the move by Mr. Companion of his stable out of Mohawk to a private training facility shortly after the subject positive test was the appropriate due diligence that was warranted in the overall circumstances.
We had no evidence before us in Exhibit 2 or in Exhibit 7 as to the party responsible for the written “threat” on Mr. Companion’s tack room door on or about June 12, 2004, a week before the June 19, 2004 subject positive test.
Likewise we heard no evidence from investigator Grant of the Administration’s investigative staff as to the author of the graffiti referenced in Exhibit 2.
We would have hoped that the coincidence of events referenced above would have resulted in some further investigation as to the identity of the author of the graffiti documented in Woodbine’s Securities Investigation Report which is Exhibit 2 in the proceedings before us. As that report confirms:
“Companion has no definite suspect in mind but is concerned by the threat. The stable consists of thirteen horses, nine of which are racing at this current time. Companion did not feel that anything had been disturbed, but did express concern about his feed that is stored directly next to the door that the writing was on, stating, ‘Who knows what could have been done to it.’”
The Judges in this matter, as confirmed by the evidence of Judge Cahill, assessed the minimum penalty for a Class III offence as prescribed by the Guidelines for Penalties for Equine Drug and TCO2 Offences (hereinafter the “Guidelines”) proclaimed by this Commission.
The Guidelines are, however, very specific in that:
(a) “The suggested penalties (suspension and fines) are guidelines only.”
(b) “On a first offence, the Commission and/or its representatives may impose a penalty beyond or below the range in appropriate circumstances.”
While we do not agree that trainer Companion can be absolved from his responsibility for the protection of Fier A Bras Semalu in this case, we do, however, feel that there are a significant number of mitigating facts and circumstances that warrant a consideration of a penalty “below the range” of the first offence, Class III provision of the Guidelines. In the circumstances at hand and taking cognizance of the evidence as a whole, we feel a penalty of $1,500.00 and a 21-day full suspension would be appropriate.
Accordingly, the appeal is allowed in part and the order of the Judges dated June 4, 2004 is varied and amended so that the 60-day full suspension is quashed and replaced by a 21-day full suspension with the same $1,500.00 fine remaining.
Counsel for the Administration and Mr. Companion’s representative shall consult and hopefully agree on the starting date of the suspension. If no such agreement results, this panel shall be reconvened to hear submissions and to fix the commencement date of Mr. Companion’s 21-day suspension.
This panel does note and recognize the efficient and expeditious manner in which counsel for the Administration and Mr. Whelan presented the evidence and argument in this appeal.
DATED at Toronto, this 8th day of September, 2004.
Larry Todd
Vice Chair